Letter to the Editor
National Law Journal
RE: Mr. Gregory Joseph's explanation of the 2000 revisions
to Rules 701, 702, and 703 of the Federal Rules of Evidence
In the Federal Practice Section of the October 9 edition of the Journal, Mr. Gregory Joseph's explanation of the 2000 revisions to Rules 701, 702, and 703 of the Federal Rules of Evidence clarifies their inadequacy. By making what Mr. Joseph described as "lay expert" opin ions inadmissible under Rule 701, the revision may solve the problem of expert witness "sand bagging", but it will create many other problems. Requiring judges to exclude lay opinions under Rule 701, simply because they are based on "specialized knowledge", has established a field of quicksand for lawyers and judges. The Evidence Code has established no adequate way for determining either when a witness with practical experience moves from layman to expert, or the standards by which judges are to determine whether the experience qualifies the witness as an expert under the Daubert standard incorporated into Rule 702.
The revisions to Rule 703 are the most curious. An expert is permitted to rely on other wise inadmissible evidence on the belief that experts can adequately assess the reliability of evidence that is regularly evaluated in the course of their professional lives. Based on that inad missible evidence, the expert is permitted to offer conclusions to the jury that the jury is permit ted to accept as true. The new revisions permit the inadmissible basis to be delineated for the jury if the proponent demonstrates that the probative value of that evidence "substantially out weighs" the dangers in its use. With this demonstration having been made, and the expert being available to answer questions about her assessment, it is not clear why the jury is not also per mitted to use the otherwise inadmissible evidence in the same way as the expert witness — for its truth? Such a demonstration should establish "circumstantial guarantees of trustworthiness" equivalent to that provided in the many exceptions to the hearsay rule delineated in Rules 803 and 804. Consequently, we likely will find judges admitting the evidence for its truth under the residual exception in Rule 807. When this happens, the Rules will have achieve a result striking ly similar to that proposed to the Advisory Committee years ago by the Evidence Project of the American University Washington College of Law. See 171 F.R.D. 330 (1997). The only differ ence will be that it was accomplished inadvertently rather than intentionally.
Professor Paul R. Rice
Director, The Evidence Project
Washington College of Law
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